Human rights enthusiasts often portray the European Convention on Human Rights and the European Court of Human Rights as a pure distillation of European values, bulwarks of protection for the fundamental and equal rights of human beings, institutions refreshingly above politics. Look more closely, however, and you might take a rather different view of the Council of Europe (which oversees the ECHR) and the Court as remarkably partisan bodies, and of the Convention as a document that has been bent to partisan purposes. A decision last month from the court in Strasbourg rather neatly illustrates this point.
The case concerned Julien Sanchez, currently 39 and an enfant terrible of French politics. The son of communist trade unionists in Algeria, but (to the disgust of the French bien-pensant establishment) a lifelong supporter of Marine le Pen’s Rassemblement National, he is currently the high-profile mayor of the town of Beaucaire near Arles, holding about 60% of the vote as a result of a populist policy of freezing rents and zealous protection of residential tenants’ rights.
What brought him into the spotlight was a spat arising from the 2011 parliamentary elections when, aged 27, he ran in Nîmes against Franck Proust (who won, but himself faced serious corruption charges after a later election). After Sanchez attacked Proust on Facebook, two supporters posted complaints on his ‘wall’ that the city, then run by Proust’s party the UMP, increasingly resembled Algiers, with white people’s cars regularly having stones thrown at them and Muslims frequently engaging in overt drug dealing with little police intervention.
Franck Proust’s then-girlfriend Leïla Tellaa took umbrage, crying ‘Islamophobia.’ The French state obliged: the upshot was criminal fines of €4,000 for breach of hate speech law, levied not only on the exasperated voters who had made the comments, but on Mr. Sanchez himself. Why on him? Because he had not immediately expunged the comments, the court said, he had become party to them.
Too offensive to be free
Understandably concerned that the French courts had quietly created a no-go area for interchange between politicians and electors on matters of delicacy but also of enormous concern to the latter, and that a candidate could hardly be expected to prevent his voters speaking their mind, Mr. Sanchez appealed. He got no joy from the French courts. He fared no better in the European Court of Human Rights. The latter said this was far from the sort of thing that ought to be protected as free speech, and that the French were absolutely justified in punishing it; and the Grand Chamber, a kind of super-court set up under the Strasbourg system to hear cases of great import, enthusiastically agreed. (If you are not put off by the slightly turgid prose of the Strasbourg judges, you can read the judgment here.)
The obvious first reaction is that there is now something very wrong with free speech Strasbourg-style. Whether you agree with them or not, and whether or not they offend particular groups, voters (and these undoubtedly had a point) must be able to make their views known publicly to politicians. Politicians on their side must be allowed to reflect the genuine concerns of their would-be constituents. Condoning the punishment of a politician for doing this is bad enough: supporting his criminalisation for mere omission in failing to suppress views expressed by his voters on Facebook is grotesque. If ever there were a case for free speech intervention, it would be this one—as already pointed out by organisations like Article 19 and Media Defence, neither of which is either notably right-wing or supportive of racism.
When you look at the judgment, however, it gets much worse. The court could simply have said that the restriction on speech, while unfortunate, was within the state’s margin of error and therefore should be left to stand in the name of democracy. It did no such thing. Instead, it went out of its way not only to accept the restriction but to commend France for imposing it.
Following its increasingly common practice of citing all kinds of partisan documents approvingly, the court started by quoting with approval the protocol to the European Convention on Cybercrime, requiring states to criminalise statements promoting discrimination, without mentioning that this is a controversial measure and that a number of ECHR states are not party to it. It then went on to quote in extenso radical resolutions from the Council of Europe and its Parliamentary Assembly in 1998 and 2008, which called on states to intervene aggressively in limiting freedom to engage in speech seen as ‘hate speech,’ and similar 2015 and 2021 documents from the European Commission against Racism and Intolerance dealing with perceived Islamophobia and calling for a strong line on anything that might even indirectly promote it.
Next, having paid the necessary lip-service to the idea that there should be “little scope” for interfering in political speech, the court came to the meat of the matter and held that, to the contrary, there was actually quite a lot of scope, especially when what it referred to as “equal dignity” was involved. It was crucial, the court said, for political figures to be pressured to avoid any comment that might “foster intolerance.” “Exclusion of foreigners” (by which presumably it meant attacks on their practices) was a “fundamental attack on individual rights;” and while discussion of sensitive matters was permissible there had to be avoidance of any “vexatious or humiliating remarks or attitudes,” as such conduct “might trigger reactions among the public that would be detrimental to a peaceful social climate.” As regards the internet, the risk of harm to human rights and freedoms was, it said, higher than that posed by the press, and this had to be borne in mind when it came to imposing duties to remove offensive remarks. In short, France deserved plaudits for using the law to nip this particular speech in the bud.
Losing democratic debates
This view of free speech is highly constrained, and should be worrying to anyone who believes in liberty and democracy. In singling out certain opinions for denial of free speech protection, it pays scant attention to the rather important issue of viewpoint neutrality, a principle fundamental to First Amendment practice in the U.S. under which a state needs to avoid discriminating between points of view and privileging those expressing one to the exclusion of its opposite. And it also is worryingly constraining of robust political discourse.
As Article 19, an international organisation that “works to defend and promote freedom of expression and freedom of information worldwide,” notes:
Allowing criminal liability for third-party content for some social media users might prevent them from having a comment section on their social media accounts at all which will in turn prevent robust discussions and democratic discourse.
Suppressing remarks or attitudes that could harm a “peaceful social climate” may be great for genteel Council of Europe meetings, university seminars, or dinner parties in Paris’s tonier arrondissements, even if it might make them a trifle dull. But it won’t work for any kind of effective 21st century politics. Politics in any democracy worth the name is a dirty, raucous, populist business in which people’s feelings will get hurt. It is far better to accept this than to try to put the lid on such things, which will only lead them to bubble up elsewhere in less attractive ways.
Unfortunately the Council of Europe, and with it the Strasbourg court, have for a long time been rather hesitant about freedom of speech—or at least freedom of speech as an American might see it. Put bluntly, it disconcerts them. As long ago as 1970, the Council resolved that the press—which it saw in its patrician way as a dangerously populist influence—was too free to print what it liked about people, and said that the human right to privacy needed to be expanded to curb it. Since then, while the extent of the right to free speech as interpreted by Strasbourg has largely stood still or even regressed, the right to privacy, which is often directly opposed to it, has grown out of all recognition. Indeed, it has now been held positively to demand restriction of speech in some cases, for example in the area of defamation (including defamation of the dead). And in at least one case in 2021, the court actually held a state liable for not suppressing political speech with a slightly racist tinge.
This is all merely one aspect of a wider depressing fact about the court and the European human rights establishment behind it. In 1950, the Convention was a long-stop: a check to be applied to states impartially and in highly limited circumstances. Apart from a few changes to its ancillary provisions, its wording remains the same in 2023. But in the last 40 or so years its nature has changed entirely. Under the innocent-seeming principle that the instrument now needs to be interpreted and developed as a ‘living instrument,’ it has in the hands of an activist court become closer to a would-be progressive constitutional document than a background reminder of the limits of the state’s moral authority. Today the enforcement of rights under the state is a decidedly selective process, and increasingly involves the imposition of a rather prescriptive liberal political agenda.
This might not matter, except that the judges pushing this agenda in the course of their decisions are transnational and deliberately insulated from democratic accountability, and states party to the Convention are expected to give effect to their rulings whatever their electorates may think or say. In other words, every metre by which human rights jurisprudence advances is a metre lost to democratic debate.
In at least one member country of the Council of Europe, the UK, this has resulted in the rising prospect of withdrawal entirely from the ECHR (possible on six months’ notice). If there are to be more decisions like that in the Sanchez case, then this is a virus that could spread. In view of the developments in the last 40 years, some might say, not before time.
The European Court of Human Rights Attacks Free Speech
Human rights enthusiasts often portray the European Convention on Human Rights and the European Court of Human Rights as a pure distillation of European values, bulwarks of protection for the fundamental and equal rights of human beings, institutions refreshingly above politics. Look more closely, however, and you might take a rather different view of the Council of Europe (which oversees the ECHR) and the Court as remarkably partisan bodies, and of the Convention as a document that has been bent to partisan purposes. A decision last month from the court in Strasbourg rather neatly illustrates this point.
The case concerned Julien Sanchez, currently 39 and an enfant terrible of French politics. The son of communist trade unionists in Algeria, but (to the disgust of the French bien-pensant establishment) a lifelong supporter of Marine le Pen’s Rassemblement National, he is currently the high-profile mayor of the town of Beaucaire near Arles, holding about 60% of the vote as a result of a populist policy of freezing rents and zealous protection of residential tenants’ rights.
What brought him into the spotlight was a spat arising from the 2011 parliamentary elections when, aged 27, he ran in Nîmes against Franck Proust (who won, but himself faced serious corruption charges after a later election). After Sanchez attacked Proust on Facebook, two supporters posted complaints on his ‘wall’ that the city, then run by Proust’s party the UMP, increasingly resembled Algiers, with white people’s cars regularly having stones thrown at them and Muslims frequently engaging in overt drug dealing with little police intervention.
Franck Proust’s then-girlfriend Leïla Tellaa took umbrage, crying ‘Islamophobia.’ The French state obliged: the upshot was criminal fines of €4,000 for breach of hate speech law, levied not only on the exasperated voters who had made the comments, but on Mr. Sanchez himself. Why on him? Because he had not immediately expunged the comments, the court said, he had become party to them.
Too offensive to be free
Understandably concerned that the French courts had quietly created a no-go area for interchange between politicians and electors on matters of delicacy but also of enormous concern to the latter, and that a candidate could hardly be expected to prevent his voters speaking their mind, Mr. Sanchez appealed. He got no joy from the French courts. He fared no better in the European Court of Human Rights. The latter said this was far from the sort of thing that ought to be protected as free speech, and that the French were absolutely justified in punishing it; and the Grand Chamber, a kind of super-court set up under the Strasbourg system to hear cases of great import, enthusiastically agreed. (If you are not put off by the slightly turgid prose of the Strasbourg judges, you can read the judgment here.)
The obvious first reaction is that there is now something very wrong with free speech Strasbourg-style. Whether you agree with them or not, and whether or not they offend particular groups, voters (and these undoubtedly had a point) must be able to make their views known publicly to politicians. Politicians on their side must be allowed to reflect the genuine concerns of their would-be constituents. Condoning the punishment of a politician for doing this is bad enough: supporting his criminalisation for mere omission in failing to suppress views expressed by his voters on Facebook is grotesque. If ever there were a case for free speech intervention, it would be this one—as already pointed out by organisations like Article 19 and Media Defence, neither of which is either notably right-wing or supportive of racism.
When you look at the judgment, however, it gets much worse. The court could simply have said that the restriction on speech, while unfortunate, was within the state’s margin of error and therefore should be left to stand in the name of democracy. It did no such thing. Instead, it went out of its way not only to accept the restriction but to commend France for imposing it.
Following its increasingly common practice of citing all kinds of partisan documents approvingly, the court started by quoting with approval the protocol to the European Convention on Cybercrime, requiring states to criminalise statements promoting discrimination, without mentioning that this is a controversial measure and that a number of ECHR states are not party to it. It then went on to quote in extenso radical resolutions from the Council of Europe and its Parliamentary Assembly in 1998 and 2008, which called on states to intervene aggressively in limiting freedom to engage in speech seen as ‘hate speech,’ and similar 2015 and 2021 documents from the European Commission against Racism and Intolerance dealing with perceived Islamophobia and calling for a strong line on anything that might even indirectly promote it.
Next, having paid the necessary lip-service to the idea that there should be “little scope” for interfering in political speech, the court came to the meat of the matter and held that, to the contrary, there was actually quite a lot of scope, especially when what it referred to as “equal dignity” was involved. It was crucial, the court said, for political figures to be pressured to avoid any comment that might “foster intolerance.” “Exclusion of foreigners” (by which presumably it meant attacks on their practices) was a “fundamental attack on individual rights;” and while discussion of sensitive matters was permissible there had to be avoidance of any “vexatious or humiliating remarks or attitudes,” as such conduct “might trigger reactions among the public that would be detrimental to a peaceful social climate.” As regards the internet, the risk of harm to human rights and freedoms was, it said, higher than that posed by the press, and this had to be borne in mind when it came to imposing duties to remove offensive remarks. In short, France deserved plaudits for using the law to nip this particular speech in the bud.
Losing democratic debates
This view of free speech is highly constrained, and should be worrying to anyone who believes in liberty and democracy. In singling out certain opinions for denial of free speech protection, it pays scant attention to the rather important issue of viewpoint neutrality, a principle fundamental to First Amendment practice in the U.S. under which a state needs to avoid discriminating between points of view and privileging those expressing one to the exclusion of its opposite. And it also is worryingly constraining of robust political discourse.
As Article 19, an international organisation that “works to defend and promote freedom of expression and freedom of information worldwide,” notes:
Suppressing remarks or attitudes that could harm a “peaceful social climate” may be great for genteel Council of Europe meetings, university seminars, or dinner parties in Paris’s tonier arrondissements, even if it might make them a trifle dull. But it won’t work for any kind of effective 21st century politics. Politics in any democracy worth the name is a dirty, raucous, populist business in which people’s feelings will get hurt. It is far better to accept this than to try to put the lid on such things, which will only lead them to bubble up elsewhere in less attractive ways.
Unfortunately the Council of Europe, and with it the Strasbourg court, have for a long time been rather hesitant about freedom of speech—or at least freedom of speech as an American might see it. Put bluntly, it disconcerts them. As long ago as 1970, the Council resolved that the press—which it saw in its patrician way as a dangerously populist influence—was too free to print what it liked about people, and said that the human right to privacy needed to be expanded to curb it. Since then, while the extent of the right to free speech as interpreted by Strasbourg has largely stood still or even regressed, the right to privacy, which is often directly opposed to it, has grown out of all recognition. Indeed, it has now been held positively to demand restriction of speech in some cases, for example in the area of defamation (including defamation of the dead). And in at least one case in 2021, the court actually held a state liable for not suppressing political speech with a slightly racist tinge.
This is all merely one aspect of a wider depressing fact about the court and the European human rights establishment behind it. In 1950, the Convention was a long-stop: a check to be applied to states impartially and in highly limited circumstances. Apart from a few changes to its ancillary provisions, its wording remains the same in 2023. But in the last 40 or so years its nature has changed entirely. Under the innocent-seeming principle that the instrument now needs to be interpreted and developed as a ‘living instrument,’ it has in the hands of an activist court become closer to a would-be progressive constitutional document than a background reminder of the limits of the state’s moral authority. Today the enforcement of rights under the state is a decidedly selective process, and increasingly involves the imposition of a rather prescriptive liberal political agenda.
This might not matter, except that the judges pushing this agenda in the course of their decisions are transnational and deliberately insulated from democratic accountability, and states party to the Convention are expected to give effect to their rulings whatever their electorates may think or say. In other words, every metre by which human rights jurisprudence advances is a metre lost to democratic debate.
In at least one member country of the Council of Europe, the UK, this has resulted in the rising prospect of withdrawal entirely from the ECHR (possible on six months’ notice). If there are to be more decisions like that in the Sanchez case, then this is a virus that could spread. In view of the developments in the last 40 years, some might say, not before time.
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